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On Friday afternoon, Abiodun Williams of the Hague Institute for Global Justice moderated a well-attended panel with three members of the International Court of Justice: Judge Joan Donoghue (United States), Judge Julia Sebutinde (Uganda), and Judge Xue Hanqin (China). Dr. Williams provided some opening remarks, noting that a large portion of the legal community does not have a full understanding of the ICJ and that the International Criminal Court often “takes up much of the oxygen” of the international law discussion. He then posed questions for the judges on several different topics.
Regarding the gender dynamic of the Court, Judge Sebutinde noted that the presence of female judges has perhaps focused or tempered the deliberations process amongst the judges on the Court. Judge Xue, however, observed that the three panelists, while all women, often disagreed on issues in cases that came before them. Judge Donoghue commented that people often presume nationality is the dominant characteristic driving judge’s decisions, yet the members of the court are not so one-dimensional.
Equally diverse are the various prior career paths of the Court’s members. Judge Sebutinde remarked that among her colleagues were people from academia, former diplomats, and former judges. Every decision issued by the Court, she observed, has been examined and debated from many different perspectives.
Judge Xue commented that the ICJ statute itself requires diversity among the members of the court in that it brings together decision-makers from both common law and civil law traditions. This sparked a question from audience member Professor Pellet who wondered whether the court is becoming more and more dominated by common law theory, particularly in respect to evidentiary matters. Judge Donoghue responded that a minority of the judges on the court come from common law backgrounds, and in any event, the court’s decisions are more often driven by the approach of parties than anything else. Judge Xue provided that she found the court generally more civil-law oriented, and she emphasized that the make-up of the court is ultimately out of the hands of the individual judges.
Another audience member suggested that the new creation of so many different international tribunals may cause confusion about the development of a uniform jurisprudence in international law. Judge Xue responded that the question of such fragmentation is different than in the national context because international tribunals do not function within a constitutional framework. Judge Donoghue agreed that the international legal system is inherently decentralized. Judge Sebutinde further observed that other ad hoc tribunals compliment each other in that they all have their own specific mandates or statutes that guide their administration and jurisprudence. She remarked: “The greater the variety, the merrier the meal!”
Another audience member wondered whether the Court needed reforms to modernize. Judge Donoghue responded that the Court has, in fact, made many changes in recent years. For example, it never used to cite jurisprudence from other courts, but now it does so in certain contexts. It also used to deliver orders in one long sentence, whereas now it uses a narrative style. Judge Sebutinde further observed that the new judges are younger every year and join the Court with fresh ideas.
In response to a question as to whether the ICJ judges would ever consider televising their internal deliberations, Judge Xue expressed a need to resist such changes because deliberations serve as the one time and place where the judges can freely exchange their views and debate. Unlike a parliament, the ICJ is not a forum where people have representatives advocating their interests subject to public scrutiny.
Michael P. Daly is an associate in the Washington D.C. office of White & Case LLP specializing in international arbitration and litigation.